The Cost of Getting Even

Although “sexual harassment” often makes the news, less publicized “retaliation” claims are far more prevalent, and often result in large payouts to the accuser.

Retaliation claims have increased sharply over the past years. The EEOC has recently released its 2014 Fiscal Year litigation data and retaliation leads all other charges filed. In FY 2014, EEOC received 37,955 charges (42.8% of all charges filed) for retaliation. Race (including racial harassment) accounted for 35% of the charges filed while sexual harassment (including pregnancy) accounted for 29.3% of the charges, disability (28.6%) and age (23.2%) discriminations are next in line.

What is retaliation and why are there so many charges filed? It is illegal to “retaliate” against applicants, employees or former employees because they have filed a charge of discrimination, filed a whistleblowing charge, complained to their employer or other entity about their supervisor or manager, have complained about discrimination in the workplace or because of participation in an employment discrimination investigation or proceeding. The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, and fringe benefits. Supreme Court decisions have resulted in a lower threshold for establishing a claim of retaliation, and increased potential damages. Retaliation claims are easier to prove than other discrimination charges. In many cases, the plaintiff has failed on the initial claim yet prevailed on the retaliation claim.

What can your do to protect your company? There are three important steps your company should be taking now to reduce the risk and better defend itself against retaliation claims:

1. Policies and Procedures: Assure that your anti-harassment and anti-discrimination policies also contain a strong anti-retaliation clause. This may involve updating your handbook. Additionally, assure that your discipline and termination policies are understood by your managers and fairly enforced;
2. Training: Training is critical. Managers should receive anti-harassment/discrimination/retaliation training on a regular basis to ensure they know how to identify and prevent such behavior in the workplace, and how to fairly apply relevant company policies. Additionally, training your management team on how to effectively promote two-way communication with employees is essential. Training will not only assist in producing better managers, but also in creating a happier work environment.
3. Listen to Employees: Employees should have several “go-to people” to raise concerns, without feeling intimidated or threatened. Don’t ignore any complaint! Follow up with the employee after the company or HR has reviewed their concern. The company (or HR) should assure that the employee has not been treated differently as a result of the complaint and that any inappropriate behavior is identified and prevented from occurring again.

Having a company policy is great, but if it is not consistently followed it’s as if it doesn’t exist—and it could work against your company if you have to defend against a charge or a lawsuit.

Now is the right time to update your handbook, policies and procedures and to schedule training for your supervisors and managers to help prevent costly litigation in the future. The cost of doing so is far less than that of defending a charge or lawsuit.

Due to on-going demand, PMP has released a new E-learning for employees on “Identifying and Preventing Harassment and Discrimination in the Workplace.” PMP will soon release a version of E-learning geared for managers and supervisors that will discuss retaliation.